Changes quietly made by the United States Customs and Immigration Services (USCIS) in the Optional Practical Training (OPT) for foreign students could adversely affect H-1B aspirants among them. The USCIS is currently processing 2017 petitions under the H-1B visa programme meant for skilled workers in America.
OPT allows some foreign students to continue in the country up to three years after completion their courses and do paid work. The USCIS now stipulates that OPT workers cannot be placed at third party sites. “Recently we looked up the USCIS website and noticed that it said third party placement is prohibited and STEM (science, technology, engineering, and mathematics) OPT candidates must be placed at the employee’s own premises. The only explanation is not something that USCIS is charge of. It cited that Immigration and Customs Enforcement (ICE) cannot carry out site inspections at third party places because its does not have access to them,” Anna Stepanova, attorney with Murthy Law Firm in Maryland told The Hindu. “However, in the H-1B cases, ICE has no problem going to third party sites, and ICE has not spoken on this issue yet,” she said.
ICE has enhanced site inspections since the Donald Trump administration came to power. The bar on third party placements for OPT employees put out on the USCIS website at least as early as January this year has gone unnoticed until now. The new language, which is the USCIS’s new interpretation of its own 2016 rule, says, “..the training experience must take place on-site at the employer’s place of business or worksite(s) to which U.S. Immigration and Customs Enforcement (ICE) has authority to conduct employer site visits to ensure that the employer is meeting program requirements….the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.”
“I am not aware of any revocation of OPT approvals or denials based on this new rule. We don’t know what is happening. The rule itself does not prohibit third party placement, though it explicitly prohibits some other practices under OPT,” Ms. Stepanova said.
The current OPT rules went into effect on May 10, 2016. When the rule went into effect, there was confusion about what IT companies could and do not do, because of the oversight requirement of the OPT programme. The employer is required to give OPT employees “training” and oversight, but the business models of many of these companies involved placing people at third party sites, where people with STEM degrees had job to do.
“While one has to provide sufficient oversight, you can provide a manager at the third party site or employ other methods of training and oversight where the employee is furthering the education as OPT rules stipulate. Every company dealt with the situation in their own manner,” Ms. Stepanova said.
The regulation has not been changed and the no new policy memo has been issued on the subject. “All that has changed is the wording on the website. For all practical purposes, everything remains the same as far OPT is concerned. But everyone is concerned that they have a new interpretation. We do not know this changes in the USCIS position will or could be implemented,” she said.
The impact could be felt during the processing of H-1B petitions for OPT students. Those who are already in the U.S could request of change of status in their visas, and OPT students working at third party sites may be denied that facility. “They could cite the new rule while processing approved H-1B, and might not approve the change of status request. In that case the beneficiaries would have to go for consular processing that will require the beneficiary to leave the country and apply for visa. Their change of status request could be denied,” Ms. Stepanova said.
